SHIVADHARI KALU SINGH Vs. RUBY MILLS LTD

JUDGEMENT

(1.) The present appeal is preferred by the original petitioner against the judgment dated April 2, 2007 in Writ Petition No. 546/2007 by a single Judge arising from judgment dated October 31, 2006 passed by the President, Industrial Court, Maharashtra Mumbai in Appeal (IC) No. 94/2004 arising out of judgment dated February 26, 2003 passed by the Judge, 11th Labour Court, Mumbai in Application (BIR) (REIN) No. 81/1999.

(2.) It is the case of the appellant that he joined the services of the respondents as a watchman in Watch and Ward department with effect from May 1, 1999. It is the case of the appellant that he worked throughout the month and in addition for more than 20 days in the month commencing from December, 1998. The appellant further submitted that he earned wages for 29 days in May 1999 and then for 28 days in the month of February 1999. It is the case of the appellant that in the month of March 1999 and April 1999 he worked and earned wages for 31 and 30 days respectively. The appellant further submitted that he was working in the regular vacancy and not as a substitute in place of another employee though he was described as a substitute in the record of the respondents.

(3.) The appellant states that on May 1, 1999 after the appellant completed his duty at about 7.25 a.m. or thereabout, Mr. Nayon Singh, Head of the Security Department in the undertaking of the respondents informed the appellant that the appellant has been given a break for 2 to 3 days and thereafter he should report back to duty on May 3, 1999. Thereafter, the appellant tried to join the duty on several occasions but, the respondent did not allow him to join the services. It is the case of the appellant that on May 12, 1999 when the appellant met Shri Vyas, Shri Vyas handed over a xerox copy of discharge order dated May 3, 1999 to the appellant. The appellant submitted that there were 28 posts of watchmen in the respondent-mill. The appellant states that the Watch and Ward department however, is covered by the; standing orders applicable to the operatives in Cotton Textile Industries in the local area of Bombay. It is the case of the appellant that though he was described as a substitute watchman, he had continuously worked for 140, days in a vacant post and not as a substitute or badli worker in place of any other permanent watchman. It is the case of the appellant that a vacancy existed on the date on which the appellant's services were discontinued. The appellant further submitted that in terms of the standing orders he was entitled to be on probation for three months and thereafter permanent in services of the respondents in terms of the said standing orders applicable to the operatives in Cotton Textile Industry in local area of Bombay. The appellant submitted that in the present circumstances he preferred a letter dated June 30, 1999 as required under the provisions of Section 42(4) of the Bombay Industrial Relations Act, 1946 read with Rule 53 of the Bombay Industrial Relation Rules, 1947. Thereafter, the appellant filed an application under Sections 78 and 79 read with Section 42(4) of the Bombay Industrial Relations Act, 1946 before the Labour Court, Bombay in the matter of illegal termination of service praying for a direction to the respondents to reinstate him with continuity in service with full back wages. The said application (BIR) (REN) No. 81/1999 was decided by the Judge, Labour Court, Mumbai on February 25, 2004 and he held that the appellant failed to prove that he was entitled to any relief as prayed vide Exhibit U-1.